Directive (EU) 2016/343 of the European Parliament and of the Council of the European Union, from March 9th 2016, on the strengthening of certain aspects of the presumption of innocence and of the right to be present at the trial in criminal proceedings

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On March 9th 2016, the European Parliament and the Council of the European Union adopted the Directive (EU) 2016/343 of the European Parliament and of the Council of the European Union on the strengthening of certain aspects of the presumption of innocence and of the right to be present at the trial in criminal proceedings.

This Directive establishes rules on the presumption of innocence, burden of proof, the right to remain silent and the right not to incriminate oneself, the right to be present at trial and the right to a new trial.

Such a Directive is another step towards the establishment of an Area of Freedom, Security and Justice as delimited in the Treaty of the Functioning on the European Union. This Directive was adopted after three other Directives on procedural rights in criminal matters have been adopted. The said three Directives – regarding the right to interpretation and translation in criminal proceedings; the right to information in criminal proceedings; and the right of access to a lawyer in criminal proceedings and in European arrest warrant proceedings, and on the right to have a third party informed upon deprivation of liberty and to communicate with third persons and with consular authorities while deprived of liberty – are a concretization of the Resolution of the Council on a Roadmap for strengthening the procedural rights of suspected or accused persons in criminal proceedings[i].

The subject matter of this Directive lays down common minimum rules concerning certain aspects of the presumption of innocence in criminal proceedings and the right to be present at the trial in criminal proceedings.

The scope of the Directive is presented on its article 2: “[t]his Directive applies to natural persons who are suspects or accused persons in criminal proceedings. It applies at all stages of the criminal proceedings, from the moment when a person is suspected or accused of having committed a criminal offence, or an alleged criminal offence, until the decision on the final determination of whether that person has committed the criminal offence concerned has become definitive”. This Directive does not apply to legal persons.

This Directive aims to strengthen the trust of Member States in each other’s criminal justice systems and facilitate mutual recognition of decisions in criminal matters. The adoption of the said minimum rules may also remove obstacles to the free movement of citizens throughout the territory of the European Union as well as enhance citizen trust of Member States’ justice systems.

Due to this Directive Member States shall ensure that suspects or accused persons on criminal matters are presumed innocent until proved guilty according to the governing law. In order to achieve such presumption of innocence Member States shall take the necessary measures to ensure that public and judicial authorities refrain to refer to the accused/suspect person as being guilty. However, without prejudice to acts of the prosecution in order to prove the guilt of the suspect/accused person and preliminary decisions of a procedural nature taken by judicial authorities.

Member States shall also take the necessary measures in order to avoid the presentation of the suspect/accused person – in public or in court – as being guilty, meaning, the use of measures of physical restraint must be avoided. Nevertheless, Member States may allow the usage of measures of physical restraint for needs of security, avoiding the contact with third persons, and to prevent the suspects or accused persons from absconding.

According to this Directive, the burden of proof for establishing the guilt of the suspect or accused persons is on the prosecution. Notwithstanding any obligation on the judge or the competent court to seek both inculpatory and exculpatory evidence, as well as the right of the defence to submit evidence in accordance with the applicable national law.

Member States shall also ensure that the suspects or accused persons have the right to remain silent and the right not to incriminate oneself regarding the offence they are suspect or accused of committing. These rights must not be used against the suspect or accused person as well as it shall not be used as evidence that they have committed the offence.

The Directive also establishes the right to be present at trial. Nonetheless, Member States may provide that a trial which can result in a decision on the guilt or innocence of a suspect or accused person can be held in his or her absence, provided that the following conditions exist: a) the suspect or accused person has been informed, in due time, of the trial and of the consequences of non-appearance and b) the suspect or accused person, having been informed of the trial, is represented by a mandated lawyer, who was appointed either by the suspect or accused person or by the State.

A decision taken in the absence of the accused/suspect person may be enforced but only if the conditions provided in the Directive are respected. If the suspect or accused person is not present at trial or the conditions established in the Directive are not respected, Member States shall ensure that the suspect/accused person has the right to a new trial.

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